FactsOn 7 November 2016 in the early hours of the night, the Plaintiff Mr Schokman was asleep, in a shared accommodation with another employee, Sean Hewett. They were in the staff accommodation at their employer's resort on Daydream Island. Schokman was awoken to the sound of Hewett vomiting in the bathroom. Schokman went back to sleep. Schokman was then awoken by Hewett standing over him, urinating on his face.
IssuesAt first instance, Schokman argued that his employer was in breach of its duty of care owed to him as its employee. This argument was rejected. Schokman also argued that Hewett committed a tort and that the employer was vicariously liable. It was held that Hewett committed a tort but the employer was not vicariously liable.
This appeal challenges the decision that the employer was not vicariously liable for Hewett's tort.
Decision of the Court of AppealIt was a term of Hewett's employment that he reside in the staff accommodation on the island and more particularly in the room assigned to him. Whilst Hewett remained employed at the resort he was required to live there and once he ceased to be employed at the resort he was required to leave. The terms of Hewett's employment required him to take reasonable care that his acts did not adversely affect the health and safety of other persons. That was an obligation which governed his occupation of this room. Hewett was not occupying the room as a stranger but instead as an employee and pursuant to his employment contract. It was therefore held that there was a connection between Hewett's employment and his actions. The employer was held vicariously liable for Hewett's negligence and the loss caused by it and Schokman was awarded $431,738.99 in damages.
Take away for Employers
This case demonstrates the Court's continuing broadening of the concept of vicarious liability. Employers need to be cautious as this may now leave them liable for the conduct of employees even if the worker's employment merely provides the circumstance for the conduct occurring.
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We would like to acknowledge the contribution of Maria Clemente (Solicitor) to this article.